Upper Tribunal (Immigration and asylum chamber), 2019-10-29, JR/05466/2018 & JR/04567/2018
| Jurisdiction | UK Non-devolved |
| Date | 29 October 2019 |
| Published date | 30 October 2019 |
| Hearing Date | 01 October 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/05466/2018 & JR/04567/2018 |
JR/5466/2018 & JR/4567/2018
JR/5466/2018 & JR/4567/2018
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
23 October 2019
Before:
UPPER TRIBUNAL JUDGE BLUNDELL
__________________________
Between:
THE QUEEN
(on the application of)
AUMAS & MAMAS
Applicants
- and -
IMMIGRATION OFFICER, HEATHROW
First Respondent
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Second Respondent
__________________________
Baldip Singh, instructed by Amnesty Solicitors, for the Applicant
Zane Malik, instructed by the Government Legal Department, for the Respondent
Hearing date: 1 October 2019
__________________________
JUDGMENT
__________________________
JUDGE BLUNDELL:
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The applicants are dual Syrian/Sudanese nationals who were born on 10 June 1999 and 14 January 2001 respectively. They seek judicial review of: (i) the decisions made by the first respondent on 2 April 2018 to cancel their leave to enter the United Kingdom and (ii) the decisions made by the second respondent on 8 May 2018 to affirm the Immigration Officer’s decisions on Administrative Review.
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The claim form identified only the Secretary of State as the respondent but the challenges brought were evidently to the decisions I have identified above. I am satisfied that no prejudice is caused by directing under rule 9(1) that the Immigration Officer be added as a respondent and I do so direct.
Background
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The applicants are brothers. Their father is MS and their mother is RMS. On 31 May 2017, the father made an application for entry clearance as a Tier 1 (Investor) Migrant, under paragraph 245EB of the Immigration Rules. The mother applied for entry clearance as the Family Member of a Relevant Points Based System Migrant, under paragraph 319C of the Immigration Rules. The applicants and their three younger siblings (aged 13, 8 and 7 at the date of the decisions under challenge) applied for entry clearance as the children of relevant PBS Migrants, under paragraph 319H of the Immigration Rules. Those applications were all successful, and entry clearance was granted on 3 October 2017, valid until 3 February 2021 in each case.
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The applicant’s father is also a dual Syrian/Sudanese national. He is a businessman who has invested substantial sums in the UK. He also has significant business interests in Kuwait and is required to travel regularly as a result of his business interests. Both applicants wish to study in the UK, ultimately with a view to entering the medical profession. Their parents are fully supportive of their aspirations.
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The applicants arrived in the UK with their father on 25 October 2017. All three left the UK five days later and then returned on 2 January 2018. The applicants were enrolled at a boarding school in Oxfordshire. They started term on 5 January 2018. Their father left the United Kingdom again. On 16 March 2018, they left the UK to spend half term with their family in Kuwait. They returned on 2 April 2018, arriving at Heathrow Airport. They were questioned by Immigration Officers at Heathrow Terminal 3, following which they were issued with notices entitled Notice of Cancellation of Leave to Enter. For reasons which will become apparent, I need not set out the terms of those notices.
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On 10 April 2018, the applicants sought administrative review of the first respondent’s decisions. The Secretary of State responded to the applications on 8 May 2018. She maintained the decisions made by the Immigration Officers but she amended the reasons given. (These amended decisions confusingly bear the date 2 April 2018 but Mr Malik confirmed on instructions that they were the amended decisions which had been ‘backdated’). The two amended decisions are in materially identical terms. The decision in respect of the first applicant is in the following terms:
You have presented a United Kingdom biometric residence permit number RG 384 8388 which had effect as leave to enter the United Kingdom on 3 October 2017 but I am satisfied that false representations were employed or material facts were not disclosed for the purpose of obtaining the leave, or there has been such a change of circumstances in your case which has removed the basis of your claim to admission. I therefore cancel your continuing leave. I therefore cancel your leave to enter in accordance with paragraph 321A(1) of the Immigration Rules.
In order to qualify for this leave one of the requirements as per paragraph 319H(f) was for both of the applicant’s parents to be lawfully present (other than as a visitor) in the UK, or being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant or one parent must be lawfully present (other than a visitor) in the UK and the other is being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant.
Since the grant of your leave until your most recent arrival on 2 April 2018 your father has spent only seven days in the UK from a total of two visits. Your mother during this same period has only spent a total of four days having arrived on 25 October 2018 and by your admission lives in Kuwait.
In your Visa Application Form you stated you would be residing at [London, W6], the same address as provided by your mother and father. However, you have been enrolled as a full-time student at [~], an international boarding school since 5 January 2018 and residing at [Oxford, OX3].
Therefore taking the above into account it would appear that your mother’s leave was obtained in order to facilitate your leave to enter the UK to attend boarding school as she returned back to Kuwait after a mere four days in the UK. Furthermore your circumstances since the issue of your entry clearance have changed as a result neither of your parents residing with you in the UK and therefore you attend and reside at a boarding school full-time.
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The first applicant applied for another Administrative Review on 22 May 2018, which was ultimately refused on 25 June 2018. Pre-action correspondence between was concluded on 11 June 2018, with the second respondent maintaining the decisions under challenge.
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Claims for judicial review were issued on 13 August 2018 (first applicant) and 2 July 2018 (second applicant). Judge Pitt directed that the claims should be linked and anonymised. Judge Bruce granted limited permission to apply for judicial review on 12 March 2019. She considered it arguable that the decisions under challenge misconstrued paragraph 319H of the Immigration Rules insofar as they required the sponsor to be continuously present in the UK and, further, that it was arguable that there had been no change of circumstances because the leave of the parents had been left undisturbed. She did not consider the grounds to be arguable insofar as they related to paragraph 321A(2), because the decisions under challenge did not invoke that provision.
Legal Framework
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Paragraph 319H is in Part 8 of the Immigration Rules and appears under a sub-heading of Children of Relevant Points Based System Migrants. The paragraph contains the requirements for entry clearance or leave to remain. Sub-paragraphs (b) and (f) are both relevant. Those sub-paragraphs provide as follows:
(b) The applicant must be the child of a parent who has, or is at the same time being granted, valid entry clearance, leave to enter or remain, or indefinite leave to remain, as:
(i) a Relevant Points Based System Migrant, or
(ii) the partner of Relevant Points Based System Migrant.
or who has obtained British citizenship having previously held indefinite leave to remain as above.
(…)
(f) Both of the applicant’s parents must either be lawfully present (other than as a visitor) in the UK, or being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant or one parent must be lawfully present (other than as a visitor) in the UK and the other is being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant, unless:
(i) The Relevant Points Based System Migrant is the applicant’s sole surviving parent, or
(ii) The Relevant Points Based System Migrant parent has and has had sole responsibility for the applicant’s upbringing, or
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There are serious or compelling family or other considerations which would make it desirable not to...
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